Texas Supreme Court Takes Up Same-Sex Divorce

The Texas Supreme Court last week quietly granted petitions to review the matter of same-sex divorce.

As we reported on August 7, various parties, including State Rep. Dan Branch, were lining up to voice support or opposition to same-sex divorce. At the time, it was a largely academic exercise. No more. The Texas Supreme Court will hear oral arguments in the case November 5 at 9 a.m.

A little background: the Texas Constitution forbids same-sex marriage. However, it does not forbid same-sex divorce. This presents practical problems. As we pointed out

“A married opposite-sex couple in Texas buys a home during the course of their marriage. Keeping it simple, even if the income of only one spouse in the marriage is used, the house is part of the community estate (that is, the marital estate). Therefore, in the case of divorce, the house is part of the community, and each party has a claim to an interest in the house.”

Now – same example, but using a same-sex couple that got married in another state but relocates to Texas. The couple decides to separate. If the separation is not terribly acrimonious, maybe things can be sorted out. If, however, the separation (or, divorce, really) is acrimonious – as they often are – the living arrangement changes; now, instead of two people each with a claim to and rights in the house as part of the community estate, we have two people – one a homeowner, the other a trespasser.”

To see Texas' position on the issue, read below the jump. As it happens, practical and legal problems presented themselves in the separation of two different same-sex couples in Texas. Both couples had married in Massachusetts. At the time of their respective separations, both couples lived in Texas. One couple filed for divorce in Dallas. Ultimately, the appeals court in Dallas held that no such divorce could be granted.

The other couple filed for divorce in Austin. Their divorce was granted. Both couples filed petitions for review with the Texas Supreme Court in February and March 2011. While briefs such as Branch's had been filed with the court and addressed the petitions and advocated various positions, there was no word on whether the court would actually take up and hear either case. Last week, in its weekly orders, the court agreed to hear the case as part of one consolidated oral argument in November.

What position will the State of Texas in these arguments?

In July, several weeks after the U.S. Supreme Court struck down DOMA and allowed same-sex marriage in California, Texas filed a brief addressing the recent Supreme Court decisions. As stated at the outset of its brief, Texas argues that:

“[T]he Texas Constitution and Family Code prohibit a Texas court from treating a same-sex couple like a validly married couple, whether in a divorce or in any other context. As a result, the only way this Court could provide the relief J.B. seeks is by refusing to enforce Texas law on grounds of unconstitutionality. If the Court takes this case, it cannot, as J.B. suggests, decline to reach the merits of J.B.'s constitutional attack on Texas's marriage laws.”

Texas goes on:

“Those marriage laws are a valid exercise of the State's well recognized authority to define marriage and to decline recognition to out-of-state marriages that violate the Texas's public policy. United States v. Windsor does not alter the outcome. Its holding and its reasoning apply only to the federal government, not the States. J.B.'s expansive reading of Windsor ignores large portions of the Supreme Court's decision, which affirms the States' traditional authority to define and regulate marriage within their borders. Projecting Massachusetts' marriage policies into Texas, as J.B. urges, would contradict the very principles of federalism on which Windsor relies. Hollingsworth v. Perry is irrelevant to this case.”